As Governor mulls new social media ban Supreme Court considers tech clash

While Gov. Ron DeSantis mulls over whether to approve some of the nation’s strictest social media restrictions the U.S. Supreme Court is poised to decide the fate of another social media law championed by the Governor.

The court on Monday will hold oral arguments over laws passed by both Texas and one passed by the Florida Legislature in 2021 (SB 7072) that came after former President Donald Trump was kicked off social media platforms such as Twitter—now called X— Facebook and YouTube after the Jan. 6 riots at the U.S. Capitol.

Trump has been restored to social media platforms since then but the case is being closely watched and brought in legal filings from everyone from the administration of President Joe Biden to First Amendment advocates as well as Trump, conservative groups, and other Republican-led states. Attorney General Ashley Moody plans to attend the hearing in person.

The Florida law prevents tech companies from de-platforming political candidates and subjects the companies to fines as high as $250,000 per day. The legislation also gave residents a chance to sue social media companies if they believed they had been unfairly targeted or censored. At the time the bill was passed DeSantis said it was needed to counter “Silicon Valley elites.”

Groups representing tech companies immediately sued after DeSantis signed the measure into law and called it an infringement on the First Amendment rights of companies. A federal judge in Tallahassee blocked the law from taking effect and that decision was largely upheld by the 11th Circuit Court of Appeals in Atlanta. A separate appeals court, however, reversed a lower court decision on the Texas law that rejected some of the reasoning used by the 11th Circuit.

In a January filing to the Supreme Court Moody and her office, along with lawyers from the firm of Cooper & Kirk, contend Florida had a legitimate reason to pass its law to ensure fair treatment on internet platforms that are engaged in a business activity. The state pushed back against the argument it was violating the First Amendment rights of companies.

“They contend that any government regulation of the presentation of user speech on their websites is a direct regulation of their speech and thus is presumptively unconstitutional,” states Florida’s brief. “That argument, if accepted, threatens to neuter the authority of the people’s representatives to prevent the platforms from abusing their power over the channels of discourse.”

Lawyers representing tech trade associations, meanwhile, have argued that Florida is going against decades of First Amendment case law. In a reply brief filed earlier this month, they argued that Florida’s law “requires a select handful of private actors to disseminate third-party speech against their will and restricts their ability to decide how to organize and present that speech.”

The legal filing added that the law “draws distinctions based on content, speaker, and viewpoint. It does all this because Florida dislikes how websites like Facebook and YouTube have exercised their editorial discretion and wants to amplify speakers and messages the state prefers.  In short, SB 7072 uses forbidden means to achieve a forbidden end, as the First Amendment does not tolerate efforts to “restrict the speech of some elements in our society to enhance the relative voice of others.”

The legal arguments come at the same time that DeSantis is poised to decide the fate of another social media bill (HB 1) that some argue is unconstitutional and may swiftly draw a legal challenge. The bill, which was sent to the Governor on Friday, would bar minors 16 and younger from being able to open social media accounts on most platforms regardless of whether they have parental permission.

DeSantis has openly questioned whether the legislation is constitutional. He has until this upcoming Friday to decide whether to sign it, veto it, or let it become law without his signature.